Unity of the Graveyard and the Attack on Constitutional Secularism

Brigham Young University Law Review, 2004 by Gey, Steven G

Perhaps the central underlying problem with the claim of unity through religion is that the claim depends on the attainment of a world that will never exist-that is, a world in which we all agree at the most fundamental level about the most basic issues of life, death, and meaning. These are the sorts of issues that religion (at least any religion worth discussing) addresses, and the claim that religious unity is possible implicitly asserts that agreement about these fundamental questions can be achieved. The possibility that any such agreement can occur in a community of any size is sheer fantasy, and any effort to achieve such agreement will lead inevitably to totalitarianism. This is why democratic theory sets a different goal for itself, essentially constructing a society in which these issues can be addressed by individual citizens on their own terms, and without fear of collective coercion or retribution. There are two paths to this narrower, but infinitely more desirable form of political unity. The next two sections sketch the outlines of the two ways in which unity under a secular constitution can be justified.

IV. REAL UNITY AND THE AFFIRMATIVE CASE FOR CONSTITUTIONAL SECULARISM

The pursuit of unity is a precarious objective in a democracy. Some forms of unity are not only permissible but actually necessary for democratic governance. For example, to prevent ordinary disputes over policy decisions from deteriorating into civil war, there must be unity among the population with regard to the need to lose political conflicts gracefully and to respect the legal validity of policies made by one's victorious opponents. Other forms of unity, however, effectively impose an ideological orthodoxy that undercuts the pluralistic prerequisites of democratic government. Religious unity falls into the latter category. The pursuit of national unity through religious values assumes a comprehensive unity of purpose that affirms an identifiable set of fundamental values. This sort of unity is incompatible with democracy because it eschews the ideological agnosticism that is the primary prerequisite for long-term democratic governance.48

To insist that democratic government is "agnostic" is not to say that democracy is unprincipled. On the contrary, democratic governance can only endure by adhering to certain core principles. The principles that form the core of a constitutional democracy are essentially the principles of skepticism and constant ideological evolution, the recognition of which prevents the government from ever enshrining in law any particular set of fundamental values to the exclusion of any other set of values. There is a certain innate irony to this conception of democracy, in that it requires a democratic government to tolerate the existence and expression of even the most antidemocratic values among its citizens, even though it is clear that if those antidemocratic citizens gain power (even through democratic means) and establish their values as law, then that government will cease to be a democracy.